Access to Counsel, Economic Justice & Effective Municipal Defense

Note: This article was co-written by Rosalie Joy and Franklin Cruz. You can reach Rosalie, Director of the Municipal Court Public Defender’s Office in Atlanta, by clicking here or and Franklin by clicking his name in the byline. Rosalie is featured in the article photograph.

This past week I had the opportunity to discuss the unique challenges of practicing in municipal justice systems with both the American Council of Chief Defenders (ACCD) and the Community-Oriented Defender (COD) Network at the National Legal Aid and Defender Association.  On behalf of the Municipal Defender Network, I sought to underscore the mistake our community makes when it ignores what happens in the “lowest” courts when discussing national indigent defense issues. 

The reception was positive, but there was much left unsaid.  Therefore, I wanted to share in writing some of what was discussed and the issues I could not address in what never is enough time.

The Invisible Courts

There are municipal courts throughout the country, but even fewer who have any defense counsel available to indigent defendants.  Yet, we know little about who they are, where they practice, and what they can and cannot do for the clients.  There is a crisis of right to counsel at the municipal level that eclipses the right to counsel issues at the county and state levels.  It is a crisis left unexamined and unstudied by the broader criminal justice community, making municipal courts de facto “invisible courts.”

Defenders in municipal courts handle traffic violations, municipal ordinances, and in some places, low level misdemeanors.  We don’t handle the “serious cases” and historically, since outcomes have been viewed as minor, municipal court practices have been cast aside in favor of focus on felony work.  However, the indigent defense community across the country can make no greater mistake than to ignore what is happening at the municipal level.  Since Padilla, we have understood better than ever the dire consequences on immigration status; eligibility for public benefits and housing; employment and licensing for certain vocations; among others that resound from convictions.  However, collateral consequences (which are not collateral at all) do not stop there.

Ground Zero for Dramatic Damage Done to Communities

Municipal courts are ground zero.  The “petty” crimes handled in municipal courts mean missed days of work that result in job loss.  They mean children having no supervision which results in child protective cases.  They mean suspension or revocation of driver’s licenses, which can mean loss of income for people dependent on their vehicles for work.  They can mean financial penalties placed on indigent persons that make “debtors’ prisons” out of our jails and that keep clients under the continuing supervision and influence of the court as the collector of the debt.  Petty quickly escalates into not so petty.

In our own state of Georgia, we have been canvassing the municipal courts and are just scratching the surface of what is happening in its 535 municipalities.  Only half of the 100 largest municipalities have independent municipal courts.  Of those who have municipal courts, 80 percent report that defendants have access to counsel, but we have yet to understand whether that access is meaningful.  We have found that another 10 percent of these courts respond to a defendant’s request for counsel by transferring their cases up to the county court.  That means that the charge (and therefore the potential penalty) has to be upgraded in order to fall within the jurisdiction of the county. 

And what of the fines related to the “petty” offenses handled by municipal systems?  A fine of $25 or $50 can quickly escalate to $200 or more dollars after fees and surcharges are added.  And, when the fees are not paid, there are additional financial penalties and/or jail time for failure to pay.  The Justice Initiatives Institute’s “Cited in Milwaukee: The Cost of Unpaid Municipal Citations” studied 66,623 citations from 2008 to 2013 with judgments of over $15.7 million.  The charges?  Disorderly conduct; traffic violations, including driving with a suspended license; loitering; and possession of marijuana.  The outcomes?  Payments were made in only 10,131 of the cases for a total of $1.6 million.  Those who could not pay subsequently spent 686,406 days in the county jail, at a cost estimated at $70.7 million.

A New Frontier for Creative Thinking and Advocacy

What can we do?  The workload of city ordinance violations and traffic charges account for the largest number of criminal cases filed in courts across the nation.  Despite this reality, the courts that handle these offenses are the most under-resourced.  Judge to case ratios are higher than any other jurisdictions, and so are attorney to client ratios.  The challenge of processing huge volumes of cases has cultivated systemic violations of the U.S. Constitution that are now engrained in the culture of high volume courts.  

It is hard to believe that 44 years after the Supreme Court extended the right to counsel that we still have a nation full of local courts that do not provide attorneys. 

Without robust advocacy from the defense community the problems that existed 44 years ago will continue to thrive in our nation, both with regard to access to counsel and also, access to effective counsel.       
At the local level, there are many opportunities for effecting change.  The reality is that caseloads will always be too high and courts will always be challenged with timely processing and adjudication.  Despite this, public defenders and court appointed counsel must turn away from focusing on all of the barriers to achieving quality representation and instead, begin creatively thinking about ways to enhance their advocacy, despite the barriers.   Have we become complicit in our assessment of what can be accomplished for the client who is facing the same pressures from the court to hurry with decision making?  Has the pressure to hurry caused us to cut corners and settle on easy pleas?  While it is imperative to get clients out of jail, have we lost the ability to balance that goal with careful analyses of the strength or weakness of the case, with alternative sentencing options, or with the collateral consequences our clients will face after conviction?

As a national defense community we need to reach out to municipal defenders and invite them to convene and collaborate in the same way that county and state defenders do.  Municipal defenders are generally absent from national conferences.  We don’t see law review articles written about their work.  Clients in municipal courts are just as entitled to effective representation as clients in felony courts and attorneys who take on the task must be prepared to advocate with skills that are customized to combat against the pressures of Assembly- Line Justice.  A new frontier of advocacy that creates solutions within the barriers and ultimately, achieves meaningful access to counsel is desperately needed, and the entire criminal defense community is urged to join in this mission.